This is an application for cancellation of bail granted to Abdul Sadiq and Abdul Malik, accused- respondents Nos.1 and 2 herein, by a learned Magistrate of the 1st Class, Charsadda which was not cancelled by the learned Sessions Judge, Charsadda by his order, dated 2-4-1991, when approached, in a case F.I.R. No.409, dated 8-12-1990 registered at Police Station, Prang under section 302 read with section 34, P.P.C.
2. The F.I.R. Was drawn up at the instance of Muhammad Shoaib, complainant/petitioner, who was informed by Sahib Khan P.W. Claiming to have been accompanying the deceased alongwith Juma Gul and Wazir Gul P.Ws. Since the complainant/petitioner was not an eye-witness, therefore, statements of Sahib Khan, Juma Gul and Wazir Gul were recorded both under sections 161 and 164 of the Criminal Procedure Code. According to these P.Ws., they alongwith Abdul Wahid deceased were on their way to the house of Juma Gul and Sahib Khan. When they reached near the boundary wall of the College, they noticed Abdul Sattar (absconder) coming duly armed on the road wrapped in his ---Chaddar---. As soon as Abdul Wahid, who was ahead of them, reached there he fired at him with his rifle of 303 bore with which he was hit on his head and fell to the ground. Meanwhile, Abdul Malik, Abdul Sadiq and Arshad son of Abdul Sadiq, who were also standing duly armed with lethla weapons at some distance, opened fire and then took to their heels towards the nearby graveyard. On reaching near the deceased, they found him to have succumbed to the injuries.
4. The two Courts below held the view that as the effective role culminating in the murder of the deceased had been attributed to Abdul Sattar absconding co-accused and only one empty shell of 303 bore had been recovered, therefore, the question as to whether the accused-respondents had or had not shared their common intention with the absconding co-accused, called for further inquiry and, therefore, the accused-respondents were entitled to bail.
5. Mian Shauka" Hussain, Advocate, learned counsel for the petitioner, contended with reference to:
(1) Chiragh Din and others v. The State PLD 1967 SC 340 and (2) Iqbal v. The State 1982 SCMR 84 that the accused respondents were not entitled to the concession of bail because in the circumstances of this case, their mere presence at the scene of the crime was sufficient overt ad to support the conviction by the application of section 114, P.P.C. The learned counsel further submitted that the unexplained noticeable absconcence of the two armed-respondents disentitled them to the concession of bail notwithstanding the merits of the case and placed implicit reliance on the principle laid down by the august Supreme Court in the precedent case of Awal Gul v. Zawar Khan and others PLD 1985 SC 402. It was lastly submitted that the two accused- respondents have misused tie concession of bail and by pressurising Sahib Khan P.W. Made him to resile from his earlier statements recorded under sections 161 and 164, Cr.P.C. Which fact alone was sufficient to disentitle the accused-respondents to claim the concession of bad.
6. Mr. Shahabuddin Burq, the learned counsel for the State, has, while supporting the plea for the cancellation of bail granted to the accused respondents, adopted the arguments advanced by the learned counsel for the complainant/petitioner.
7. Conversely, Mr. Munir Khan, the learned counsel for the accused respondents, in defence of the impugned orders made the following submissions:--
(a) That the entire family of the accused-respondents has been involved in the case so as to deprive them of their liberty and render their life miserable. He made reference to the effective role assigned to Abdul Sattar absconding-accused and ineffective firing subsequently by the accused- respondents and Arshad son of Abdul Sadiq although it is not clear at whom they had directed their fire.
(b) That being an unwitnessed occurrence, Sahib Khan, a tenant of the petitioner, was brought forward with Juma Gul, who is dead and Wazil Gui, who is the stock-witness of the complainant party and, therefore, looking to their role attributed to them, the case against the accused respondents was of further inquiry within the contemplation of section 497(2), Cr.P.C.
(c) That abscondence alone is not sufficient to refuse the plea of bail of the accused-respondents if they are otherwise entitled to it on merits and relied upon: (1) Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182 and (2) The State v. Malik Mukhtar Ahmad Awan 1991 SCM R 322.
(d) That the allegation that the accused-respondents have threatened the eye-witness and that the accused-respondents have misused the concession of bail is not satisfactorily proved, in that, it is for the P.W. Who has been suborned and not for the complainant to do it on behalf of, the said P.W. In this context he relied on : (1) Abdul Wahab v. Muhammad Nawaz and another 1977 P Cr. L J 914 and (2) Sardar Khan alias Sardara v. Muhammad Fazil and others 1978 P Cr. LT 266.
8. The first question as to whether the accused-respondents Nos.1 and 2 have or have not shared the common intention with their absconding co--accused in the murder of the deceased is a serious question which would be addressed by the trial Judge and it would not be proper at this stage to make any observations thereon. Nonetheless, the possibility of ineffective role being attributed to the two accused-respondents simply to involve the accused respondents renders the case against them one of further inquiry within the contemplation of subsection (2) of section 497, Cr.P.C.
9. As for the abscondence, the ratio in Awal Gul's case by the Honourable Supreme Court was elaborated in the case of Muhammad Sadiq referred to above in the following paragraph:-- "In some rare cases notwithstanding abscondence, the accused might be released on bail for example, when the accused is a woman, a child or a sick and infirm person or when he otherwise becomes entitled to bail as of right under subsection (2) of section 497, Cr.P.C. And/or the so- called abscondence is satisfactorily explained by the accused so as to establish that in reality it did not amount to abscondence."
This dictum of the august Supreme Court was reiterated in Najib Gul v. Khalid Khan 1989 SCMR 899 as under:-- "Unfortunately it has been ignored that noticeable abscondence deprives an accused person of concession of bail unless he gets it as of right under subsection (2) of section 497, Cr.P.C. Or the offence is bailable otherwise. The grant of bail as of right under section 497(2), Cr.P.C. Is possible only when a finding is rendered that there are not reasonable grounds for believing that the accused has committed the particular offence."
In the recent case of Malik Mukhtar Ahmad Awan referred to above, the Honourable Supreme Court has affirmed the view aforesaid in the following words:-- "It may, however, be observed that it is not an absolute rule that a fugitive should under no circumstances be enlarged on bail although, it may be added, abscondence does constitute a relevant factor when examining the question of bail."
The rule deducible from the perusal of the aforesaid authorities of the Supreme Court is that abscondence does not operate as an absolute bar against the claim of bail pending trial in cases falling within the prohibitory clause of subsection (1) of section 497, Cr.P.C. Which either fall under the first proviso to subsection (1) or those under subsection (2) of section 497, Cr.P.C.
10. The allegation that the accused-respondents have suborned the eye--witness and thereby have misused the concession of bail has been substantiated by an affidavit filed by the complainant and not by Sahib Khan P.W., who has resiled from his earlier statement recorded under section 164, Cr.P.C. And made a fresh statement exonerating at least the accused- respondents on account of which he has been directed by the Magistrate to be proceeded against under the law. In this state of affairs, this allegation does not seem to have been satisfactorily proved particularly when it has also been made dear in the counter-affidavit filed by the accused- respondents that they did not threaten any witness nor they intend to do so.
11. In the circumstances of this case, I find no force in the application for cancellation of bail granted to the accused-respondents and reject the same.